Chapter three: The exclusive rules of evidence

Question 1

the exclusive rules of evidence deal with

Answer 1

• veracity
• propensity
• hearsay
• opinion
• ID
• improperly obtained evidence

Question 2

veracity

Answer 2

a disposition to refrain from lying

Question 3

propensity

Answer 3

a tendency to act in a particular way

Question 4

When do rules not apply for evidence about a persons veracity?

Answer 4

If veracity is an element of the offence eg perjury

Question 5

In deciding whether evidence about a witness’s veracity is helpful, the judge may consider:

Answer 5

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.

Question 6

substantial helpfulness is not a sufficient test in two instances:

Answer 6

• where the prosecution wish to offer evidence about a defendants veracity
• where a defendant offers veracity evidence against a co defendant

Question 7

the prosecution in a criminal proceeding may offer evidence about a defendants veracity only if:

Answer 7

(a) the defendant has offered evidence about his or her veracity or has challenged
the veracity of a prosecution witness by reference other than the facts in issue;
and

(b) the Judge permits the prosecution to do so.

Question 8

38 – in determining whether or not to give persmission on veracity the judge may take into account the following matters

Answer 8

(a) the extent to which the defendant’s veracity or the veracity of a prosecution
witness has been put in issue in the defendant’s evidence:

(b) the time that has elapsed since any conviction about which the prosecution  seeks to give evidence: 

(c) whether any evidence given by the defendant about veracity was elicited by the  prosecution.

Question 9

propensity evidence means

Answer 9

means evidence that tends to show a person’s propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 10

propensity evidence does not include

Answer 10

• 1 of the elements of the offence for which the person is being tried or
• the cause of action in the proceeding in question

Question 11

propensity evidence includes

Answer 11

• propensity as to actions

- propensity as to state of mind

Question 12

propensity evidence does not include

Answer 12

• evidence of an act or omission that is one of the elements of the offence for which the person is being tried
• evidence that is solely or mainly about veracity

Question 13

the only way that the prosecution can offer propensity evidence about that defendant is:

Answer 13

• if he offers propensity evidence about himself or

- s43 is satisfied

Question 14

The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if

Answer 14

the evidence has a probative value in relation to the issue.
This outweighs the risk that evidence may unfairly prejudice the defendant

Question 15

True of false: the defendant does not have to be convicted as a result of his or her earlier wrong doing

Answer 15

true

Question 16

Define hearsay evidence

Answer 16

made by a person other than a witness AND is offered in evidence at the proceeding to prove the truth of its contents

Question 17

criteria for hearsay evidence admissibility

Answer 17

• reliability

- unavailability or that undue expense or delay would be caused

Question 18

WHY is hearsay evidence not reliable?

Answer 18

• no opportunity to cross examine them regarding its contents, the circumstances in which is was made and so on
• the rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question
• there is a danger that witnesses will make mistakes about the meaning or contents made by other people eg Chinese whispers

Question 19

define “unavailable as a witness”

Answer 19

if the person is

• dead
• outside NZ and not reasonable practicable to be a witness
• is unfit due to age / physical/ mental condition
• cannot with reasonable diligence be ID’d or found
• not compellable to give evidence

Question 20

is a pre trial statement of a defendant in a criminal case hearsay?

Answer 20

No

Question 21

in order for opinion to be admissible it must fulfil two basic criteria:

Answer 21

• opinion must be the only way in which to effectively communicate the information to the finder of fact
• the witness must be stating an opinion (be in conclusion, inference etc) from something personally perceived

Question 22

criteria for “expert evidence”

Answer 22

• be that of an expert
• comprise of expert evidence
• offer substantial help to the fact finder in understanding other evidence or ascertain any fact in the proceeding

Question 23

definition of an expert

Answer 23

person who has specialised knowledge or skill based on training, study or experience

Question 24

expert opinion evidence will be admissible if the fact-finder is likely to obtain substantial help from the opinion in:

Answer 24

• understanding other evidence

- in ascertaining any fact that is of consequence in the determination of the proceeding

Question 25

if the defendant intents to call an expert witness, he must disclose a brief of evidence at least ____ days before the date fixed for the trial

Answer 25

14

Question 26

the exclusive rules of evidence deal with

Answer 26

− veracity

		− propensity 

		− hearsay 

		− opinion 

		− identification 

		− improperly obtained evidence.